GOP Leaders react to Special Session Call

December 18, 2014

Statement from Senate Republican Leader Radogno and House Republican Leader Durkin: “The Illinois Constitution requires the Governor-elect to appoint a new comptroller to a four-year term. A partisan and constitutionally-dubious eleventh hour law would face a certain legal challenge and force the people of Illinois to endure a protracted and legal battle that no one wants. The only Constitutionally responsible choice is to allow the governor-elect to appoint a Comptroller to a four-year term."

The Illinois Supreme Court has held that “the State constitution is supreme within the realm of State law.” See People v. Gersch, 553 N.E.2d 281, 287 (Ill. 1990). In this case, Section 2 of Article V of the Illinois Constitution governs the terms of office and the timing of elections for state officers, including Comptroller. It speaks in clear and mandatory terms in two important respects. First, the “officers of the Executive Branch shall hold office for four years beginning on the second Monday of January… until their successors are qualified.” As the Attorney General indicated in her advisory opinion, that means that a vacancy will occur in the Comptroller’s Office for the term of office that runs from January 12, 2015 to January 14, 2019. Second, Section 2 also provides that the state officers, including the Comptroller, “shall be elected at the general election in 1978 and every four years thereafter.”

If the General Assembly were to pass a state law that creates a special election for the Comptroller in 2016, that law would violate the express terms of Section 2 in two ways. First, it would presumably create two two-year terms of office, despite the fact that Section 2 clearly provides only for a four-year term that runs until January 14, 2019. Second, it would provide for an election of a state officer outside of the schedule established by Section 2 requiring that the election of the Comptroller will be held every four years after 1978.

Section 7, Article V dealing with vacancies does not authorize the General Assembly to order a special election to fill a vacancy or replace a person who is appointed to fill a vacancy. Rather it says that the Governor “shall fill the office by appointment” and that person shall “hold office until the elected officer qualifies or until a successor is elected and qualified as may be provided by law.” The phrase “as may be provided by law” modifies “qualified” and not the word “elected.” In fact, the only support that this language was intended to provide for a special election comes from statements of a delegate to the 1970 Constitutional convention. Those statements directly conflict with the clear language of Section 2, as noted above. When a conflict exists between the express language of the Constitution and any legislative history, the Illinois Supreme Court states that “the best indication of the intent of the drafters is the language which they voted to adopt.” See Coryn v. Moline, 374 N.E.2d 211, 213 (Ill. 1978). Where the adopted language is clear, as it is in Section 2, “it will be given effect without resort to other aids for construction,” including statements of individual delegates. See People ex rel. Baker v. Cowling, 607 N.E.2d 1251, 1253 (Ill. 1992). In this case, it is also important to note that the legislative history cited comes from the debate over Section 7, not Section 2 dealing with the term and timing of the election of state officers. Therefore, the direct conflict between the express language of Section 2 and the legislative history of Section 7 would likely be resolved by enforcing the clear terms of Section 2.

Our own review of the committee reports and verbatim transcripts from the Constitutional Convention show that the election schedule for constitutional officers established in Article V, Section 2 was deliberately intended by delegates to allow voters to concentrate their attention on the state election contests in those years, rather than risk that an informed debate of state issues would be overwhelmed by the sound and fury of a national presidential contest.Those intentions should not now be lightly set aside.

We do not contest the right of the General Assembly to seek a special election. That is within their authority and judgment to do so. In the case of a state officer, like the Comptroller, however, it would require a constitutional amendment that revises the clear and mandatory terms of Section 2. As for Governor-elect Rauner, his only authority under the Constitution, as currently constituted, is to appoint a person who will assume a four-year term on January 12, 2015.

Contact Jim Durkin

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